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Ground Cover - Issue 10, April 2016

Ground Cover tracks legislative and regulatory reform in resource management, local government, planning and construction law. Our national construction and environmental teams offer market-leading expertise and a seamless service for all your commercial projects, land use, infrastructure development and consenting needs.

Construction

Treasury drives more sophisticated investment management approach

The Treasury is engaged in a big work programme behind the scenes to sharpen the public sector’s investment management and procurement capability. Late last year it produced the first of what will be annual progress reports on this workstream.

This Act, passed in February, enables Ministers to sidestep the Housing New Zealand Board in order to sell or lease state houses for social housing purposes. The power is analogous to a private sector power of attorney but is unprecedented in the New Zealand public sector.

Local Government New Zealand has produced a “think piece” to promote discussion on what is required to deliver a fit-for-purpose resource management system. LGNZ favours a stepped programme of change and has identified a number of features which it considers will be necessary in any new regime if it is to have broad acceptability. These include:

an ability to operate successfully in a dynamic context

good data collection and communication systems to promote responsible and informed public participation

the capability to achieve particular outcomes rather than just to avoid, remediate or mitigate adverse effects

a capacity to align the efforts of communities, government and business to advance common interests rather than just offering a platform to resolve disputes, and

greater alignment between the different components of the resource management framework.

The Parliamentary Commissioner for the Environment supports the idea of examining whether the RMA should, over the longer term, be split into two laws: one for environmental protection and the other for urban development (as anticipated in the Productivity Commission’s “blue skies” TOR).

She also supports further central direction in some areas of the RMA and recommends that National Policy Statements and National Environmental Standards should be replaced by a single instrument – a Statement of National Direction.

But she considers that the Resource Legislation Amendment Bill goes too far in some areas. In particular:

the proposed national planning template which seems to include a capacity for central government to impose policy directions, whether nationally significant or not, and in a way which could not be challenged in the Environment Court

proposed new section 360D which would give the Minister broad powers to override councils in permitting a specified land use and to prevent or remove “unreasonable” rules that limit residential development, and

the broadness of access to the streamlined planning processes and to the limited notification of plan change and consent application provisions.

Submissions on the Bill have now closed. The report back to the House is due by 3 June this year.

The Ministry for the Environment (MfE) is seeking feedback on proposals to create a range of options for marine protected areas. This would require amendments to the Marine Reserves Act 1971, which currently provides only for “no-take” marine reserves.

This option would be retained and three new ones added:

species-specific sanctuaries

seabed reserves to protect areas of the sea floor which might include prohibitions on seabed mining, bottom trawl fishing and dredging, and

The Bill will extend the boundary of the current Kermadec Islands Marine Reserve to the 200 nautical mile limit of New Zealand’s EEZ. Fishing, mining and non-scientific seismic surveying would be prohibited in the Sanctuary.

A private member’s bill from Labour to add to the Environmental Protection Authority’s remit an objective to protect, maintain and enhance New Zealand’s environment was killed at second reading after the Māori Party switched sides to vote with National and ACT. The Bill, which Nick Smith had described as “a bad joke”, passed its first reading on the votes of Peter Dunne, the Māori Party, New Zealand First, Labour and the Greens.

Inching ahead with freshwater management

Ministers Nick Smith (Environment) and Nathan Guy (Primary Industries) chose the annual National Party Blue Greens Conference in February to release a consultation document outlining the Government’s proposed next steps for freshwater management.

The context for the release was increasing impatience from the Land and Water Forum at the slow progress being made and a warning that the Forum consensus “will hold only if what is recommended is substantially put in place … in full and without delay”.

Whether the discussion document satisfies this demand remains to be seen.

Specific proposals include:

amending the freshwater NPS to clarify that the scale over which “overall quality of fresh water” objectives apply is within freshwater management units rather than across a region

including a Macroinvertebrate Community Index as a measure in the NPS

providing further direction on the evidence required for an infrastructure asset to be listed in Appendix 3 (permitting the council to set relevant freshwater objectives below the national bottom line)

creating a national regulation to require the exclusion of dairy cows (on milking platforms) from waterways by 1 July 2017

developing technical efficiency standards defining the amount of water that would be used by an efficient user in different climates, soils and end uses and requiring councils to apply these in catchments that are at or approaching full allocation

investigating a package of measures to facilitate the transfer of consent allocations to higher valued uses

increasing the ability of councils to recover costs from water users for monitoring, enforcement, research and management

providing for a “mana whakahono a rohe” agreement at council level which could be initiated by iwi to ensure greater participation in decision-making (although continuing to insist that no-one owns fresh water), and

establishing a Freshwater Improvement Fund to support eligible projects to a minimum of $250,000 (there will be no maximum contribution). Submissions closed on Friday 22 April

Submissions on the transitional arrangements – in particular, the two for one subsidy and the price cap – have now closed. The submission deadline for the broader issues around the design and operation of the ETS scheme is 30 April. For a broader look at the climate change challenge, click on the link below to an article Chapman Tripp Senior Associate Teresa Weeks wrote for AsiaPacific Infrastructure magazine.

The Environmental Protection Authority, appearing before the Local Government and Environment Select Committee for its annual review, said that it was exposed to “ongoing funding uncertainty” and had to accommodate the costs of acquitting its new duties under the EEZ legislation by cutting back on other areas, in particular its public education programme.

Productivity Commission issues paper

We promised in our last edition of Ground Cover that we would produce a commentary on the Productivity Commission’s issues paper for its “blue skies” review in the New Year. That is now available and can be accessed on the link below.

The Commission will publish a draft report for further consultation in July and will deliver its final recommendations to the government by 30 November this year.

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